DAMAGES

Prison Service v Beart (No 2): [2005] EWCA Civ 467

CA: Rix, Wall and Hooper LJJ: 26 April 2005

The applicant, who was employed as a full-time executive officer, suffered from depression after her position was changed to that of a part-time administrative officer. The recommendation of the occupational health consultant to relocate her to another posting was not acted on; and the employer subsequently brought disciplinary proceedings alleging that the applicant had been working in a shop, which she owned, while on paid sick leave. The report on which the charges were based was not disclosed to her, and, following the disciplinary hearing, which recommended that she be dismissed, the applicant resigned. An employment tribunal upheld her complaints that she had been unlawfully discriminated against on the grounds of her disability and unfairly dismissed. At the remedies hearing, the medical evidence was that the discrimination by the employer and the unfair dismissal had contributed to the applicant's psychiatric ill-health and would continue to do so, and the tribunal made awards for personal injuries, injury to feelings, aggravated damages and a basic award for unfair dismissal. On the complaint of disability discrimination the tribunal also awarded compensation for future loss of earnings to be calculated from the time that she had been recommended for relocation until retirement, and rejected an argument by the employer that the cause of the applicant's unemployment was her dismissal and, as a consequence, her damages should be limited to the statutory maximum for unfair dismissal. The Employment Appeal Tribunal dismissed an appeal by the employer, holding that the psychiatric harm caused by the act of discrimination and its impact on the applicant's ability to work continued far beyond the unfair dismissal and there was no reason for the chain of causation to be broken at that date, as submitted by the employer.

The employer appealed.

The Court of Appeal held:
In principle a defendant could not rely on a wrong perpetrated by himself in order, in whole or in part, to break the chain of causation put forward by the claimant to establish and quantify the damage sustained by reason of the defendant's tort. Similarly, the unfair dismissal could not be described as an "intervening act" that broke the chain of causation when it was the act of the tortfeasor itself. The employer had never proved that the applicant had misconducted herself so as to entitle the employer to dismiss her but sought, as respondent, to rely on its own wrongful act, the dismissal of the applicant from her employment, as limiting the damages which otherwise flowed from the separate tort of disability discrimination which it had previously committed. While the employer did not seek to rely on the fact that it had acted unfairly but on the fact of dismissal itself, it could not take one without the other, and, accordingly, as the dismissal was unfair, the employer could not rely on it as breaking the chain of causation.

The appeal was dismissed.

Appearances: Ashley Underwood QC and Samantha Broadfoot (Treasury Solicitor) for the employer; Antony White QC and James Laddie (Solicitor, Disability Rights Commission) for the applicant.